Tuesday, June 24, 2014

The Post Constitutional Era! Part XXX

Amendment 5 - Trial and Punishment, Compensation for Takings

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Notes for this amendment: Proposed 9/25/1789. Ratified 12/15/1791

The following is from Americapedia.

Fifth Amendment: Grand Juries (1791) - In capital or especially “infamous” or notorious crimes, the government must empanel a grand jury to decide whether there is enough evidence to charge the suspect. This protection ensures that the government is certain of its case before proceeding, and that the collective wisdom of several individual citizens is required to charge someone with a crime that may carry a very severe sentence. In this way, the people protect justice and serve as a check on the power of agents of the executive branch—the police and prosecutors.  Serving on a grand jury is a responsibility of citizenship. 

My TakeOriginally the grand jury was intended to be second only to the legislature in its authority.  But the grand jury is run by the prosecution, and the whole process has become corrupted by rules of procedure – especially at the federal level - so that very often they’re nothing more than a rubber stamp to further prosecutorial ends, and often justice isn’t a part of that end.  As you read the commentary linked below you will more easily understand how the local, state, and particularly the federal government with all it's agencies, money and power are now thoroughly corrupted with power and out of control.  The Founders intended the Grand Jury to be the natural enemy of government corruption. 

“Federal Rules of Criminal Procedure have made independently-acting grand juries illegal for all practical purposes — grand juries were understood to have broad powers to operate at direct odds with both judges and prosecutors.[8] One recent criminal procedure treatise sums up the inherent inconsistency of the modern grand jury regime:…..To Read More…..

Fifth Amendment: Right Against Self-Incrimination (1791) – The government cannot force citizens to testify against themselves. By allowing people to refuse to answer questions that might make them seem guilty, the Fifth Amendment resolves the conflict between defending oneself and telling the truth. This protection has its roots in British legal tradition, as noted by Blackstone in Commentaries on the Laws of England. The Virginia Declaration of Rights also included protection from self-incrimination.  In the landmark Supreme Court case Miranda v. Arizona (1966), the Court held that the police must inform suspects of their Fifth Amendment right to refuse to answer questions or any subsequent confessions will be inadmissible at trial.

My Take - You may wish to view my commentary, ACLU, Miranda, and the Boston Bomber, which I think is well thought out regarding this issue, and the issue of prosecutorial misconduct. 

Fifth Amendment: Double Jeopardy (1791) - The government cannot try a defendant for the same crime more than once. This prevents double jeopardy (being tried more than once for the same offense.) It inhibits the government from using its power and financial resources to try a suspect over and over until getting a guilty verdict. Additionally, it helps ensure justice be encouraging the state to be sure of its case before proceeding. This protection is part of the due process rights protected by the Fifth Amendment. 

Fifth Amendment: Due Process -The government may not deprive citizens of “life, liberty, or property” without due process of law. This means that the government has to follow rules and established procedures in everything it does. It cannot, for example, skip parts of trials, or deny citizens their rights as protected by the Bill of Rights and by law. This protection helps to ensure justiceDue process protection has its roots in the Magna Carta when King John promised that “[n]o free man shall be taken or imprisoned … or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”  The language of this amendment is echoed in the Fourteenth Amendment’s Due Process Clause. 

My TakeI you haven’t read my article linked in the previous section please do so now. 

Fifth Amendment: Just Compensation (1791) - This is called the “Takings Clause.” The government’s power to take privately-owned land in order to build roads, schools, libraries and other public facilities is called eminent domain. It was recently reinterpreted to permit government to take more generally for public purposes, such as anticipated economic development. The Clause ensures that the government must pay owners “just compensation” (usually understood to be fair market value) when it uses eminent domain to take property for public use. The right to just compensation from the government is an economic right of citizens. This protection is part of the due process rights guaranteed by the Fifth Amendment.  Landmark Supreme Court cases involving the Takings Clause include Kelo v. New London (2005).

My Take – The Kelo decision clearly demonstrates how the ‘progressives’ have made a travesty of this provision of the Constitution, which allows local, state and federal officials to steal the property of the citizenry, and worse yet, the rulings supporting the EPA, and the Wildlife Service, supposedly enforcing the Clean Water Act and the Endangered Species Act, have virtually made this amendment meaningless.  We now have an entirely unconstitutional, unelected, unaccountable fourth branch of government controlling our lives – The Bureaucracy!  And the problems with the IRS is a clear example of how they’re out of control. 

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